For the purposes of “de facto” resignations due to unjustified absence, the term established by the national collective bargaining agreement is considered
The case in question involves a worker who was absent from work without justification, having failed to obtain the required medical certification due to the absence of her specialist. The employer noting the employee’s unjustified absence – which lasted more than three days –considered the employment relationship to be terminated due to the employee’s “de facto” resignation, in consideration of the deadline for unjustified absence provided for by the applicable national collective bargaining agreement.
For purely precautionary purposes, the employer also imposed a disciplinary dismissal on the employee for the same reasons.
The worker then took legal action to ascertain the illegitimacy of the termination of the relationship and her reinstatement in the workplace, believing that the provisions regarding “de facto” resignations under Article 26 of Legislative Decree 151/2015 could not be applied to her case, given the failure to exceed the fifteen-day term for unjustified absence provided by the regulation.
The Court of Cassation, with ruling no. 4953 on October 29, 2025, rejected the worker’s appeal, stating that the reference term for evaluating “de facto” resignations “is that provided for by the national collective labor contract,” whereas the legal term of fifteen days only applies “in the absence of contractual provisions,” thereby confirming the termination of the employment relationship due to the worker’s “de facto” resignation.
When calculating the severance pay (TFR), all amounts paid to the worker on a non-occasional basis must be taken into account
Some workers took legal action to obtain a recalculation of the severance pay (TFR) owed to them, given that their former employer had failed to pay certain items included in their remuneration such as supplementary work, overtime, recalls to service, economic allowances for travel, etc.
The Supreme Court, with order no. 30331 of November 17, 2025, overturning the decision of the Court of Appeal of Rome, accepted the workers’ claim, believing that what was listed in the applicable collective labor agreement referred to “standard” wage components, i.e., the fixed components that regularly appear on payslips. However, this listing should not be considered exhaustive, and therefore, cannot justify the omission of further items owed based on the specifics of individual employment relationships.
According to the Supreme Court, in application of what is established by Article 2120 of the Italian Civil Code, where collective contracts do not provide otherwise, the annual remuneration must take into account all items that are paid to the worker on a non-occasional basis, excluding expense reimbursements. The Court also established that the burden of proof lies with the employer to demonstrate in court the validity of the exclusion of one or more items from the wage base for the calculation of the severance pay (TFR).
The employer cannot unilaterally disregard the Collective Bargaining Agreement before the agreed expiration
The Court of Cassation, with order no. 29737 of November 11, 2025, established that the employer cannot disregard the National Collective Bargaining Agreement before the expiration of the term, except through a new agreement with all the signing parties, i.e., the trade union and employer associations that signed the agreement.
Therefore, the employer cannot unilaterally withdraw from the collective contract when it has an expiration date, as this constitutes an anti-union behavior under Article 28 of Law No. 300/1970.
Moreover, the signature by workers on the new collective contract with the wording “for acknowledgment and acceptance” cannot exclude the anti-union nature of the conduct, as, according to the Supreme Court, this expression has a generic content that cannot be given a further meaning beyond a simple acknowledgment of communication.
The employee who reacts to an argument with a colleague using physical violence can be dismissed for just cause
The case in question involves a worker who was fired for just cause following a dispute with another employee, during which he reacted to the colleague’s provocations by using physical violence against him.
The employer, therefore, dismissed the employee applying what is provided for in the relevant national collective bargaining agreement, which punishes with dismissal without notice “a contentious argument followed by violent acts, among employees during work, that causes harm or disrupts the normal exercise of business activities.”
According to the Court of Appeal of Milan, which ruled with judgment no. 853 on October 31, 2025, the assessment of the worker’s conduct must be carried out taking into account the specific case and the principle of proportionality between the violation committed and the penalty imposed, with the judge needing to evaluate the seriousness of the alleged facts, even when the situation is described in the relevant collective agreement as an example.
Furthermore, for the Milanese judges the determination of who initiated the argument does not hold any relevance, since the violent reaction by the provoked worker excludes mere self-defense, irreparably affecting the trust relationship and legitimizing the expulsion sanction, which – in the case in question – was imposed on both employees involved in the dispute.
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